THE INVOLUNTARY CONFESSION AND THE RIGHT TO

DUE PROCESS: IS A CRIMINAL DEFENDANT BETTER

PROTECTED IN THE FEDERAL COURTS THAN IN OHIO?

BARBARA CHILD*

INTRODUCTION

SHIO CIVIL LIBERTARIANS have long claimed that a criminal defendant islikely to have his due process rights better protected in the federal courts

than in Ohio courts. One measure of that protection is how the courts respondwhen a defendant alleges that his confession was involuntary and thus notproperly admissible as evidence at his trial. The central issue then is whetherthe Ohio courts have kept as much in step with the United States SupremeCourt as have the federal courts in their revisions of what is the proper testof voluntariness of a confession.

Of particular concern is to what extent the Ohio courts and the federalcourts have altered their approach to voluntariness since Miranda v. Arizona.'In spite of its detailed attention to the formalities of warning and waiver,Miranda emphasizes traditional voluntariness as a still vital substantive issue.'Further, that the Miranda procedural requirements did not end the Court'sconcern with voluntariness per se is evident in Davis v. North Carolinah'where the Court considers failure to advise an acused according to theMiranda requirements "a significant factor in considering the voluntarinessof statements later made.'

To admit an involuntary confession as evidence against the accusedis to violate the Fourteenth Amendment requirement of due process of thelaw.' It is according to this principle that the Ohio courts and the federalcourts must bear scrutiny.

*Former Vice-Chairperson, American Civil Liberties Union of Ohio; Assistant Professor ofEnglish, Kent State University; B.A., M.A., Indiana University; Juris Doctor Candidate,University of Akron School of Law.

1384 U.S. 436 (1966).2 Id. at 476.3 384 U.S. 737 (1966).

'Id. at 740.'Brown v. Mississippi, 297 U.S. 278 (1936).

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I. VOLUNTARINESS: A CHANGING CONCEPTAS DEVELOPED BY THE UNITED STATES SUPREME COURT

A. The Reliability TheoryEver since the early English common law, whether a confession is

voluntary has depended upon whether it was "forced from the mind by theflattery of hope, or by the torture of fear."6 It is deceptively simple, however,to say that an involuntary confession is one induced by threats or promises.The more important issue is why such a confession should be inadmissibleas evidence. The earliest Supreme Court answer was that the confession islikely to be untrue.7 Adopting the English view, the Court explained that"inducements of a temporal nature, held out by one in authority" or "threator promise ... operating upon the fears or hopes of the accused" would makethe truth of the statement unreliable.'

Although the reliability theory prevailed for many years to come, theCourt's language nonetheless continued to define very broadly what wouldmake a confession involuntary. "[Tihe true test of admissibility is that theconfession is made freely, voluntarily and without compulsion or inducementof any sort."' The definition of voluntariness that continues in the presentday to be quoted most often, with both approval and disapproval, is that inBram v. United States,"s requiring that the statement "must not be extractedby any sort of threats or violence, nor obtained by any direct or indirectpromises, however slight, nor by the exertion of any improper influence."'"

Although the nineteenth-century definitions are broad, the cases earlyin this century focused on physical violence against the accused, the kind oftreatment that would indeed be likely to produce an untrue confession. Thedefendant had been physicaly abused in Brown v. Mississippi," the first casein which the Court set aside a state conviction because admitting the con-fession violated due process. It was not until Chambers v. Florida," a caseinvolving persistent interrogation during a week of incommunicado deten-tion, that the Court held psychological coercion capable of producing aninvoluntary confession.

During this period the Court stressed the need to analyze "the circum-

6 Warickshall's Case, 168 Eng. Rep. 234, 235 (K.B. 1783).7 Hopt v. Utah, 110 U.S. 574 (1884).8 Id. at 585.9 Wilson v. United States, 162 U.S. 613, 623 (1895).10 168 U.S. 532 (1897).11 Id. at 542-43, quoting with approval, 3 RUSSELL ON CIUMEs 478 (6th ed. 1880).12 297 U.S. 278 (1936).s 309 U.S. 227 (1940).

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THE INVOLUNTARY CONFESSION

stances out of which the alleged confessions came," ', including the defend-

ant's background and experience as well as the "circumstances.. . surround-

ing confinement." 5 These factors, of course, would not matter except that

they might bear upon how easily a defendant would fall victim to threats or

promises, that is, how likely they would be to induce from him an untrue

confession. The Court's concern then with extraneous factors about thedefendant reveals its coming to acknowledge the difficulties inherent in the

reliability theory. It was not enough to determine the factual issue of whether

threats or promises were made. The Court had produced for itself an enor-

mously complicated test that required weighing the strength of the induce-

ments against that of the individual accused. While the factors to be weighed

might be at least somewhat concrete, the reliability test of a confession was

after all quite subjective.

Thus prior to the 1960's, the Court's treatment of voluntariness was

marked by gradual shifts in theory that might well be viewed as its attempts

to solve the problems caused by the subjective reliability test. As the Court

began to stress reliability less, it stressed more the deterrence of improper

police activity. As it stressed physical violence less, it stressed psychologicalinducements more. The result was to give up subjective analysis of the de-

fendant in favor of objective analysis of police activity to see if it was "in-

herently coercive,"" such as to produce a confession that would be involun-tary as a matter of law. The whole period reveals ever more attention tovoluntariness as a requirement of Fourteenth Amendment due process.

Lisenba v. California" marks the real transition from the reliability

theory to the deterrence theory. Although the Court here affirms a conviction,finding that police practices had not coerced the confession, the opinionmakes a point of distinguishing between the concern of evidentiary rulesagainst admitting involuntary confessions and the concerns of due process.While the aim of the former is "to exclude false evidence," the due processaim is "to prevent fundamental unfairness in the use of evidence, whethertrue or false."' 8

B. The Deterrence Theory

Three years after Lisenba, the Court first articulated its "inherently

coercive" analysis in Ashcraft v. Tennessee. 9 Here thirty-six hours of ques-tioning without sleep produced a confession found involuntary as a matter

24 Ashcraft v. Tennessee, 322 U.S. 143, 148 (1944).15 309 U.S. at 239.16 322 U.S. at 154.

17 314 U.S. 219 (1941).

18 Id. at 236.

29322 U.S. 143 (1944).

Fall, 1976)

of law. Other cases of the same period reveal the Court's intention to avoidhaving to make subjective judgements about what happened behind the closeddoors of interrogation rooms, especially since trial records tended to besketchy or contained only swearing contests between the police and theaccused. It was far easier to look to quantitative matters such as length ofinterrogation"o or demonstrable infirmities of the accused."'

It was in particular to reinforce the deterrence theory that Haley v.Ohio" and other cases developed the automatic reversal rule. Eighteen yearsbefore Miranda, Justice Frankfurter wrote in Haley:

[W]e cannot give any weight to recitals which merely formalize consti-tutional requirements. Formulas of respect for constitutional safeguardscannot prevail over the facts of life which contradict them. They maynot become a cloak for inquisitorial practices and make an emptyform of the due process of the law .... 2

Stein v. New York " attempted to modify the deterrence theory andrevive the reliability theory, insisting that the "limits [of permissible interro-gation methods] depend upon a weighing of the circumstances of pressureagainst the power of resistance of the person confessing."" However, else-where the opinion suggests that some kinds of pressure would be unacceptabledespite a given defendant's ability to resist. More important, Stein was over-ruled by Jackson v. Denno.26

The Supreme Court returned to powerful denunciation of illegal policemethods in Spano v. New York 7 and especially in Rogers v. Richmond.28 Itis especially noteworthy that the grounds for the Court's ruling the confessioninvoluntary in Rogers did not involve length of interrogation or peculiarinfirmities of the accused. What the Court stressed was that Rogers wastricked into confession by the Assistant Chief of Police, who pretended inhis presence to call other officers and direct them to prepare to take intocustody the defendant's wife.

20 See, e.g., Harris v. South Carolina, 338 U.S. 68 (1949) (three days); Turner v. Pennsyl-vania, 338 U.S. 62 (1949) (five days); Watts v. Indiana, 338 U.S. 49 (1949) (six days)."1See, e.g., Davis v. North Carolina, 384 U.S. 737 (1966) (low intelligence); Culombe v.Connecticut, 367 U.S. 568 (1961) (moron mentality); Haley v. Ohio, 332 U.S. 596 (1948)(black person, only fifteen years of age, questioned in early morning for five hours by relaysof police, while his mother and lawyer were not allowed to see him).22 332 U.S. 596 (1948).28 Id. at 601.24 346 U.S. 156 (1953).25 Id. at 185.26 378 U.S. 368 (1964).2T7 360 U.S. 315, 320-21 (1959).28 365 U.S. 534, 540-41 (1961).

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As expressed in Rogers, the test of voluntariness is not based at all onsubjective assessment of facts about a particular defendant; rather, the ques-

tion is a hypothetical one: "whether the behavior of the State's law enforce-ment officials was such as to overbear petitioner's will to resist and bring

about confessions not freely self-determined-a question to be answeredwith complete disregard of whether or not petitioner in fact spoke thetruth.

'29

In Rogers the Court denounces the reliability test of voluntariness asunacceptable under the Fourteenth Amendment due process requirements.

Indeed in many of the cases in which the command of the Due ProcessClause has compelled us to reverse state convictions involving the useof confessions obtained by impermissible methods, independent cor-roborating evidence left little doubt of the truth of what the defendanthad confessed. Despite such verification, confessions were found to bethe product of constitutionally impermissible methods in their induce-ment. 0

This view makes the automatic reversal rule justifiable, given the un-fairness of sustaining a conviction based on an improper standard of volun-tariness. As the Rogers Court stresses, the trial record may be entirely in-adequate insofar as different evidence might have appeared in the record ifa different standard had been used. The Court noted:

[F]indings of fact may often be ... influenced by what the finder islooking for. Historical facts "found" in the perspective framed by anerroneous legal standard cannot plausibly be expected to furnish thebasis for correct conclusions if and merely because a correct standardis later applied to them."'

In other words, a defendant should not have to suffer either from anunconstitutional standard applied to test his confession, or from an inade-quate record used on review to establish what standard was applied. Sincethe inadequate trial record is typical, automatic reversal becomes the onlyway to insure due process protection.

C. The Balancing TheoryRogers was the Court's high water mark of concern with police

methods at the almost complete expense of concern for the truth of the con-fession. Such a view was bound not to last. Subjective tests might be trouble-some, but purely "objective" ones no more satisfactorily measure voluntari-ness. Recognizing that more than one value contributes to the requirements29 ld. at 544.30 d. at 541.

31 Id. at 547.

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of due process, the Court in the early 1960's turned partially backwards tobalance "a complex of values,"32 including: (1) protecting the defendantagainst having an untrue confession used as evidence against him; (2) pro-tecting his privilege not to incriminate himself; (3) discouraging "policepractices that are generally likely to result in unreliable evidence"; (4) dis-couraging "police practices which are unacceptable on grounds other thanthe unreliability of the resulting evidence," mainly because they affronthuman dignity; and (5) preserving the defendant's trial rights, on the theorythat a confession in effect waives the right to require the state to meet itsburden of proof beyond a reasonable doubt.3" Reliability was again clearlybeginning to weigh in the balance.

In addition to Blackburn v. Alabama," where the "complex of val-ues" was first announced, other cases reflecting these same balancing prin-ciples were Culombe v. Connecticut,5 Lynumn v. Illinois,"6 and Haynes v.Washington.7 Haynes is particularly illustrative of the balancing theoryworking to the advantage of a defendant. Haynes' confession was madeafter half an hour of interrogation the evening of his arrest and an hour anda half more the next morning, during which he was told he could call hiswife only if he cooperated and confessed. Haynes had prior criminal historysufficient to give him knowledge of police procedure (knowledge whichsome courts cite to show that the defendant's will could not easily be over-borne), yet the Court found he had "no reason not to believe that the policehad ample power to carry out their threats." 8

Perhaps the most accurate assessment of the balancing theory's effect isthat " '[s]trong' personal characteristics rarely, if ever, 'cure' forbiddenpolice methods; but 'weak' ones may invalidate what are generally per-missible methods." ' 9 The theory is attractive because it is comprehensiveand fair in principle. But it was also destined to fail. Perhaps the "complexof values" to be balanced proved after all too cumbersome. In Culombe theCourt, attempting to apply the balancing tests, produced no majority opin-ion; it took Justice Frankfurter sixty-two pages to announce the judg-

32 Blackburn v. Alabama, 361 U.S. 199, 207 (1960).33 C. MCCORMICK, HANDBOOK OF THE LAw OF EVIDENCE §148, at 315-16 (2d ed. 1972).34361 U.S. 199 (1960).35 367 U.S. 568 (1961).36 372 U.S. 528, 531 (1963) (confession held involuntary where accused told it would "goeasier" for her if she confessed, and her children would not be taken from her if she "co-operated").37 373 U.S. 503 (1963).38 Id. at 514, citing Lynumn v. Illinois, 372 U.S. 528, 534 (1963).39 Kamisar, What is an "Involuntary" Confession? Some Comments on Inbau and Reid'sCriminal Interrogation and Confessions, 17 RUTGERS L. REv. 728, 758 (1963).

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ment, attempting to explain the due process analysis for voluntariness as

divisible into three phases .'

D. The Current Focus on Procedure

It is not surprising then that the 1960's saw the Court return to its

easier, if not more satisfactory, concentration on procedure instead of sub-

jective substantive questions. Jackson v. Denno," overruling Stein v. New

York,'2 establishes the required independent preliminary court ruling on

voluntariness. Escobedo v. Illinois" insists that a waiver of rights must be

not only voluntary but also "intelligent and knowing,""' which suggests the

need not only to be informed of rights, but also to know the legal signifi-

cance of making a statement. On the heels of Jackson and Escobedo, the

Court remanded Boles v. Stevenson" to district court for a hearing on vol-untariness expressly because the record did not show whether the trial judgehad ruled explicitly on voluntariness or, if he had, what standard he hadused. Sims v. Georgia" explains the trial judge's duty further, indicatingthat he "need not make formal findings of fact or write an opinion" butthat the record must show "with unmistakable clarity"' 7 that he has madea finding of voluntariness.

Miranda v. Arizona" marks the pinnacle of the Court's attention to pro-

cedure, but the Miranda opinion makes clear that traditional voluntarinessremains an issue. The opinion also clearly anticipates prosecutorial at-tempts to make the formalities of a waiver resolve all questions about vol-

untariness. The Court correctly predicts that henceforth, voluntariness testswould be applied more to the waiver than to the confession itself. Whileallowing effective waiver of the rights enunciated in the opinion, the Courtrequires, as in Escobedo, that "the waiver [be] made voluntarily, know-

40 The explanation reads in typical part:

First, there is the business of finding the crude, historical facts, the external "phenome-nological" occurrences and events surrounding the confession. Second, because the con-cept of "voluntariness" is one which concerns a mental state, there is the imaginativerecreation, largely inferential, of internal "psychological" fact. Third, there is the ap-plication to this psychological fact of standards for judgement informed by the largerlegal conceptions ordinarily characterized as rules of law but which, also, comprehendboth induction from, and anticipation of, factual circumstances. 367 U.S. at 603.

4378 U.S. 368 (1964).42 346 U.S. 156 (1953).

43 378 U.S. 478 (1964).44 Id. at 490 n. 14.45 379 U.S. 43 (1964). In this case the defendant was led to the building where the corpse

of the mutilated victim was found. When defendant resisted entering, the police gave him thechoice of going in or explaining to them what he knew about the murder.48 385 U.S. 538 (1967).

47 Id. at 544.48 384 U.S. 436 (1966).

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ingly, and intelligently. 9 The Court says further that lengthy interrogationor incommunicado detention would be grounds for a presumption of in-voluntary waiver.

Moreover, any evidence that the accused was threatened, tricked, orcajoled into a waiver will, of course, show that the defendant did notvoluntarily waive his privilege. The requirement of warnings andwaiver of rights is a fundamental with respect to the Fifth Amend-ment privilege and not simply a preliminary ritual to existing meth-ods of interrogation."°

Miranda also places the burden -of proving voluntary waiver on the state"[s]ince the state is responsible for establishing the isolated circumstancesunder which the interrogation takes place. .... "51

Thus, while Miranda still leaves to the lower courts the necessity ofdeciding voluntariness, and even broadens the category of prohibited in-ducements to include not only threats and trickery but also cajoling, theopinion gives the courts no more settled test of voluntariness than previousSupreme Court case law provided. It is no wonder then that the history oflower court assessments of confessions has been riddled with inconsistencies,after Miranda as well as before.

I. VOLUNTARINESS IN THE OHIO COURTS

A. Before MirandaThe history of Ohio case law on voluntariness begins with Spears v.

State,52 a case still quoted with approval and one which antedated evenWarickshall's Case3 in its liberalism towards defendants.

A confession induced by hope or fear, excited in the mind of theprisoner by the representations or threats of any one, is not to be con-sidered as voluntary. The question in every case, where a confessionhas followed representations or threats, is, was it produced by them?... If the representations or threats were made by. . . a person having

authority or control over the prosecution or the accused, it is to bepresumed that the confession was produced by [them], unless it appearthat their influence was totally done away before the confession wasmade ... If satisfied ... that the confession was produced by the rep-resentations or threats, the court cannot receive it in evidence, becausethe prisoner had sufficient mind or knowledge to detect the ground-

49 Id. at 444.5 0 Id. at 476.52 Id. at 475.522 Ohio St. 583 (1853).53 168 Eng. Rep. 234 (K.B. 1783).

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THE INVOLUNTARY CONFESSION

lessness of the representations or threats; for the strongest mind isliable to be unhinged, and the question is not what the prisonerought to have believed, but what did he believe?"

What is most remarkable about this passage is its refusal to let a de-defendant's prior criminal history be used against him as evidence that heis too familiar with police tactics to be easily induced to make an involuntaryconfession. A court operating according to the reliability theory wouldnever produce such an opinion, subjective though its test might be. It wasPrice v. State" that imposed the reliability theory on Ohio courts; Ruterv. State"6 put the burden of proof on the defendant to show that his con-fession was involuntary.

The reliability theory persisted in Ohio, the courts relying on it heavilyas a means of resolving swearing contests. Sometimes it appeared that thepolice could even admit to making statements clearly amounting to threatsor promises without the confession being held involuntary. The police onlyhad to be careful -to recite expressly that they had made no threats or prom-ises. In Burchet v. State, 7 the prosecuting attorney admitted on the standthat he told the accused "that it would be easier for him if he told thetruth,"58 but he also said he made no threats or promises. Holding the con-fession admissible, the court said: "The rule is . . . that the fact that falserepresentations were employed to induce a confession does not deprive thestate of the right to use such confession where it does not appear that thefraud practiced was calculated to do otherwise than elicit the truth."5

Even after the United States Supreme Court began moving from thereliability theory to the deterrence theory, the Ohio decisions continued tofind ways out of holding confessions inherently coerced. One way out wasto distinguish the cases on their facts, counting up the number of hoursof interrogation and finding the total significantly shorter than that inAshcraft v. Tennessee,6 conceded to be controlling." However, the easiestway out was not to believe the defendant's testimony as to involuntariness.In State v. Powell,6 the court said the trial judge need not exclude a

54 2 Ohio St. at 583-84 (syllabus).55 18 Ohio St. 419 (1868).56 25 Ohio St. 464 (1874).

57 35 Ohio App. 463, 172 N.E. 555 (1930).58 Id. at 465, 172 N.E. at 556.

-9 1d. at 466, 172 N.E. at 556, following Price v. State, 18 Ohio St. 419 (1868).60322 U.S. 143 (1944).G1 E.g., State v. Collett, 44 Ohio L. Abs. 225, 58 N.E.2d 417 (Ct. App. 1944).62 105 Ohio App. 529, 148 N.E.2d 230 (1957).

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confession when the only evidence of its involuntariness at the preliminaryhearing was the defendant's evidence.6"

In State v. Scarberry,6" the court claimed to be following the rules estab-lished in Spears and Ruler. Yet the court affirmed a murder conviction, hold-ing voluntary and in violation of no constitutional rights a confession eli-cited after a three-hour interrogation that had been preceded by striking thedefendant in the face. The court concluded that the three hours of interro-gation attenuated the effect of the striking. In support of the affirmance,the opinion emphasizes the trial judge's determination that the confessionwas true. This case was decided in 1961, the same year as Rogers v.Richmond.6 After that date no court, federal or state, could. meet the re-quirements of Fourteenth Amendment due process if it used the reliabilitystandard alone to find a confession voluntary.

Two more Ohio cases involved trials before Miranda, although theirreview came after Miranda. In State v. Cron,66 the court affirmed the vol-untariness of a confession made by a defendant who claimed that he didnot have enough to eat, and that he was drowsy from seconal, so that hedid not know what he was saying. His interrogation lasted two and onehalf hours. The court in its detailed findings of voluntariness stresses twothings: his statement was perfectly consistent with other evidence, and hewas intelligent enough to be an army sergeant in charge of thirty men.

Saying that a confession is consistent with other evidence is, of course,only a thinly disguised way of saying that it is reliable. The shift in language,

which became common during this period, reveals some acknowledgmentthat the reliability theory was no longer acceptable. It also reveals that thecourt using the veiled language still regards reliability as a significant meas-ure of voluntariness. Thus the apparently gratuitous reference to the de-fendant's intelligence or other signs of sophistication becomes buttressingmaterial, added to demonstrate that the reliability test has not been usedalone.

In the second case tried before Miranda but reviewed subsequent to it,State v. Cowans,67 failure to meet the Miranda requirements, an inade-quately-fed defendant, and four hours of interrogation did not amount toa due proces violation. A later confession did result in reversal, however,

63 The defendant also lost her swearing contest in State v. Klumpp, 15 Ohio Op. 2d 461, 175N.E.2d 767 (Ct. App. 1960), where she said police told her that if she made a statement theworst she could be charged with was manslaughter.64 114 Ohio App. 85, 180 N.E.2d 631 (1961).65 365 U.S. 534 (1961).66 14 Ohio App. 2d 76, 236 N.E.2d 671 (1967).67 10 Ohio St. 2d 96, 227 N.E.2d 201 (1967).

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even though found voluntary, because the defendant was denied his demandto see an attorney. This defendant also had been promised leniency ifhe cooperated.

B. After MirandaAfter Miranda, the emphasis shifted much more to warnings and

waiver. In State v. Perry,8 the court held voluntary the defendant's state-ments volunteered after he was apprehended while fleeing the crime. Therewas no interrogation; the police, according to the court, were under no dutyto interrupt to give Miranda warnings. It was not until the morning follow-ing the arrest, however, that the defendant signed a waiver and confession.He denied having been given warnings then and insisted he confessed onlyto avoid threatened injury. There was a preliminary hearing on voluntari-ness, but the reviewing court appears to have focused more on the circum-stances surrounding the earlier oral statement than the written one, eventhough the latter statement was found voluntary.

The extent to which Ohio cases have allowed procedural formality tosupersede substantive questions about voluntariness is shown in the implica-tion in Perry, that if a judge admits evidence of a confession at trial, thevery act of admitting the evidence is sufficient to meet the Jackson require-ment that the court independently make a finding of voluntariness.69 If thisis true, then there is little hope for the poor defendant who happens to havehis case tried before a sleepy or unsympathetic judge, especially if his coun-sel is sleepy too. The prosecution offers the confession. The defense failsto object. The confession is then admitted without so much as a nod fromthe judge. Yet, under Perry, it is possible to say that the judge has indepen-dently found the confession voluntary. Such a possibility clearly shows theneed for the automatic reversal rule, for the record in such a case will giveno indication whatsoever of the grounds on which the confession was"found" voluntary.

The same sort of perfunctory judgment occurred in State v. Wiggles-worth,"0 where the court affirmed a murder conviction, simply assertingthat the Miranda warnings were given and, apparently therefore, the con-fession was voluntary.

The only recent Ohio case that shows comprehensive understandingof the dictates of Miranda regarding both the waiver of rights and thevoluntariness of the confession is not an Ohio Supreme Court case. Although

68 14 Ohio St. 2d 256, 237 N.E.2d 891 (1968).

69 Id. at 265, 237 N.E.2d at 896.70 18 Ohio St. 2d 171, 248 N.E.2d 607 (1969).

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the Court of Appeals in State v. Utsler7" claims to be following the dictatesof the Ohio Supreme Court in Perry and Wigglesworth, it goes to greatlengths to make clear that is possible to sign a waiver and still make aninvoluntary confession.2

The Utsler court spells out four distinct questions, all of which togetherdetermine the effectiveness of waiver of Miranda rights:

(1) Did the accused understand his position of peril,... in dangerof imprisonment for a long time? (2) Did he understand what hislegal rights were in this position? (3) Did he have the mental abilityto avoid giving up these legal rights? (4) Did he have the mentalability under all the circumstances to avoid answering the questions?"

Aside from Utsler, which almost seems to be an aberration in itsclear presentation of well understood law, there are three cases, spanningthe years 1965-1972, that most accurately show the current application ofthe law on voluntariness in Ohio. The first is State v. Arrington.7 ' Thedefendant here had counsel but initiated a conversation with the police andprosecuting attorney and said he did not want counsel present. The trialjudge held a suppression hearing and found that the defendant had beenfully informed of his rights, was aware of them, and had intelligently waivedthem. He concluded that the confession was voluntary, putting the burdenon the defendant to prove involuntariness. The confession was presentedto the jury for a final determination. The defendant was convicted, and theOhio Supreme Court upheld the conviction.

When the defendant subsequently sought habeas corpus in the districtcourt, that court remanded the case to the state court for a new determina-tion of voluntariness on the ground that it had been error to put the burdenof proof on the defendant. Such placement of the burden was found inconflict with Jackson v. Denno7' and Sims v. Georgia.6

However, habeas corpus was ultimately denied, and the Sixth CircuitCourt of Appeals affirmed the denial in Arrington v. Maxwell,7 beingsatisfied that the confession was voluntary for the following reasons: (1)the defendant asked to speak to the prosecutor; (2) the defendant had

71 21 Ohio App. 2d 167, 255 N.E.2d 861 (1970).72 The arson conviction here was reversed for failure to meet the preliminary hearing re-quirements. Thus, the court did not reach whether the "high-grade mental defective" defendant,who signed a waiver, made a voluntary confession.73 21 Ohio App. 2d at 173, 255 N.E.2d at 866.742 Ohio St. 2d 172, 207 N.E.2d 557 (1965), af!'d on rehearing, 3 Ohio St. 2d 61, 209N.E.2d 207 (1965), cert. denied, 383 U.S. 906 (1966).75378 U.S. 368 (1964).78385 U.S. 538 (1967).77 409 F.2d 849 (6th Cir. 1969).

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counsel; (3) the prosecutor told him he could remain silent and his state-ments could be used against him rather than as consideration for benefitsto him; and most importantly, (4) the trial judge expressly stated that hisfinding was in view of all the circumstances. 8

Here then is a case in which the Sixth Circuit found Ohio's procedureof placing the burden on the defendant unconstitutional, but at the sametime treated the procedure as adequate by permitting a finding of voluntari-ness to stand simply because the trial judge recited that it had been madein view of all the circumstances. Any inclination to use the case to illustrateOhio's lack of sensitivity to due process rights, therefore, must be temperedby noting the insensitivity demonstrated by the federal court as well in itsreview.

Arrington v. Maxwell does, however, correctly state that the burdenof proof of voluntariness is on the prosecution. There should have beenno question about this since Jackson v. Denno was decided in 1964. Ifit was not entirely clear at the time of Arrington v. Maxwell, in 1969, itbecame so in 1972, when the United States Supreme Court in Lego V.Twomey,"9 without even considering the possibility of a burden on thedefendant, established that the State had to meet its burden by a preponder-ance of the evidence.

One month before Lego came State v. Kassow,8 ° the second of thethree cases that display the current confusion in Ohio's treatment of vol-untariness, a case in which the Ohio Supreme Court upheld a murderconviction. While the confession in Kassow was used solely for impeach-ment purposes,81 the opinion does focus considerably on the matter ofburden of proof. It looks back to Ruler v. State, 2 completely overruledby Jackson v. Denno (which Kassow does not mention), for the propositionthat the burden is on the defendant.8" It also openly applies the reliabilitytest8" while purportedly applying Miranda. It misconstrues Miranda inattempting to put the burden of proof on the defendant as to the confessionwhile putting it on the state as to waiver.8"

The final case, State v. Edgell8 is instructive in several respects. First,

78 Id. at 853.79 404 U.S. 477 (1972).8028 Ohio St. 2d 141, 277 N.E.2d 435 (1971), vacated only as to death penalty, 408 U.S.939 (1972).81 Accord, Harris v. New York, 401 U.S. 222 (1971).82 25 Ohio St. 464 (1874).83 28 Ohio St. 2d at 144, 277 N.E.2d at 439.84 Id. at 145, 277 N.E.2d at 439-40.85 Id. at 144, 277 N.E.2d at 439.

8e 30 Ohio St. 2d 103, 283 N.E.2d 145 (1972).

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the Court distinguishes this case from Kassow but also does not mentionLego v. Twomey. The court in Edgell explains that in Kassow it held thatfailing to file a pre-trial motion to suppress does not constitute waiver ofthe defendant's right to object to the state's failure to prove that the de-fendant waived his right not to make a statement. 7 In Edgell, it holds thatthe defendant does waive his right to object later if he does not object duringthe trial."8 The distinction then that the Kassow opinion did not make clear issupposedly one between failure to object before trial and failure to do soduring trial, not between voluntariness of confession and that of waiver.

The Edgell court thus also diverts attention to procedure in order toavoid the substantive question of voluntariness. In this case the defendant'sstatement was tape-recorded, but there was an interruption in the tapewhile the Miranda rights were being read. The reviewing court acknowledgesthat it would be a violation of Miranda for the prosecution not to provethat it used no coercion during the interruption. The defendant alleged thatduring the interruption he asked for an attorney but was discouraged bythe prosecutor, who told him it would be easier on him if he cooperated.The prosecution testimony at trial did not contradict these allegations. Thedefendant also alleged that the sheriff had told him that if he did not con-fess, his fiancee would be sent to reform school. The court concedes Mirandaerror but calls it harmless because other unchallenged evidence against thedefendant was so overwhelming that conviction was inevitable. 9 (Hereagain is the old reliability theory only slightly disguised.)

Thus Edgell, the Ohio Supreme Court's most recent case on volun-tariness, still reflects heavily weighted use of the reliability theory in additionto unconstitutional allocation of burden of proof. The opinion circumventsMiranda while using Miranda's attention to procedure to avoid the substan-tive question.

Yet even before Miranda came the United States Supreme Court'sautomatic reversal rule, required in Fahy v. Connecticut" where "there isreasonable possibility that the [erroneously admitted] evidence ... mighthave contributed to the conviction." 1 Also, the Court insists in Chapmanv. California92 that the Fahy rule applies in spite of any contrary stateharmless error statute.

It is at least worth noting, however, that Chief Justice O'Neill, after

37 Id. at 106, 283 N.E.2d at 148.98 ld.89 Id. at 109-10, 283 N.E.2d at 150.90 375 U.S. 85 (1963).81 Id. at 86-87.92 386 U.S. 18 (1967). But see Harrington v. California, 395 U.S. 250 (1969).

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concurring in the Kassow opinion, dissents at length in Edgell, where, after

giving the facts in almost minute detail, he expressly finds the confessioninvoluntary and says that "harmless error can only be predicated upon evi-dence or testimony which itself is constitutionally admissible."93 Edgell'sstatements were produced by "certain coercive threats"9 and were, he con-cludes, involuntary.

Of particular import is that Chief Justice O'Neill finds the sheriff'sthreat preceding an oral confession to have affected the written confessionfive hours later. In other words, a five-hour lapse did not attenuate theeffect of the threat. Rather, "the totality of the circumstances surroundingthe [initial] interrogation ... were coercive," 5 and rendered the later state-ment constitutionally impermissible.

Ultimately, then, a defendant whose defense is an involuntary con-fession can find his only detailed support in Ohio case law in the ChiefJustice's dissent in Edgell and in the Court of Appeals opinion in Utsler.Both are, of course, relatively weak sources of support. They are hardlystrong enough to counter the force of: (1) having the burden of proofplaced on the defendant, allowed reluctantly by Arrington and boldly byKassow; (2) having his confession tested by the reliability theory, stronglyapproved by both Kassow and Edgell; and (3) having Miranda violationsdismissed as harmless error, possible in light of Edgell.

Furthermore, since 1973, the Ohio Rules of Criminal Procedure havestrengthened the forces against the defendant, so that now he may lose hisdue process protection if his counsel falls to timely move to suppress hisconfession according to strict technicalities. 9 A motion to suppress anillegally obtained statement must be raised before trial.9" Failure to do soconstitutes waiver.98 The state is even allowed an appeal as of right fromthe granting of a motion to suppress, as long as: (1) the state's purposeis not delay, and (2) "the granting of the motion has rendered the state'sproof ... so weak in its entirety that any reasonable possibility of effectiveprosecution has been destroyed."9 5 In effect, what this means is that if the onlyreal evidence against the defendant is an involuntary confession, the statecan nonetheless overcome suppression simply because that confession is the

93 30 Ohio St. 2d at 112, 283 N.E.2d at 151.94Id. at 115, 283 N.E.2d at 153.95 Id.

96 Omo R. ClM. P. 12. Contra, FED. R. CGiM. P. 12, which does not even include a motionto suppress a statement among the motions that must be raised before trial.97OHIo R. CuM. P. 12(B)(3).98 Omo R. CluM. P. 12(G).9 Omo R. CiUM. P. 12(J).

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only evidence. The rule heavily favors the prosecution, and, in so doing, itadheres substantially to the reliability theory.

Rule 12 serves the defendant in only two ways. It does require thejudge to state on the record essential findings on factual issues. ° Also, itallows the court to extend the time allowed for making the suppressionmotion, and to grant relief from the waiver for good cause.' Ultimatelythen, a defendant without both alert and astute counsel must hope thatthe trial judge is sensitively attuned to due process requirements and candetect subtle suggestions of involuntariness. Otherwise the defendant's chan-ces of reversal upon review in Ohio are virtually non-existent, precluded bothby case law and by the Ohio Rules of Criminal Procedure.

III. VOLUNTARINESS IN THE FEDERAL COURTS

A. Before MirandaTo detail the stumbling blocks obstructing due process protection in

Ohio, of course, cannot be to assume that a defendant is afforded anymore protection in the federal courts. A review of federal courts' applicationof the changing concept of voluntariness does in fact reveal inconsistentresults, after Miranda as well as before, while the Supreme Court was de-veloping its deterrence theory.

Before Miranda, a number of confessions were found involuntary infederal courts for predictable reasons. Often the courts made much of thequantifiable factors that marked "inherently coercive" circumstances."'Sometimes it seemed that the giving of any promise at all was enough torender a confession involuntary." 3

However, there is no distinguishing feature (except a sketchy record)to mark cases of the same period in which confessions following comparable

'00 Omo R. CRuM. P. 12(E).101 OniO R. CRIM. P. 12(G).102 See, e.g., United States ex rel. Johnson v. Yeager, 327 F.2d 311 (3d Cir. 1964) (question-ing in relays the entire night until late the following morning yielded an involuntary con-fession from a "psychically inadequate" defendant); United States ex rel. Williams v. Fay,323 F.2d 65 (2d Cir. 1963), cert. denied, 376 U.S. 915 (1964) (the accused was told he couldsee his mother and the chaplain if he confessed, which he did after 18 hours of interrogation,producing an involuntary confession).103 United States ex rel. Everett v. Murphy, 329 F.2d 68, 70 (2d Cir. 1964) (confession wasinvoluntary in part because it was "induced by police falsely promising assistance on a chargefar less serious than the police knew would actually be bought"); Crawford v. United States,219 F.2d 207 (5th Cir. 1955) (police promised to release defendant's wife if he would con-fess to a narcotics offense.) In Crawford, the court noted that any promise is sufficient toshow that a confession is not voluntary. Id. at 211 n.6, citing with approval, Ziang SungWan v. United States, 266 U.S. 1, 14 (1924), where the Supreme Court said: "In the fed-eral courts, the requisite of voluntariness is not satisfied by the establishing merely that theconfession was not induced by a promise or a threat. A confession is voluntary in law if, andonly if it was, in fact, voluntarily made."

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threats or promises were held voluntary. McHenry v. United States'"' il-

lustrates the common situation in which the trial judge found the confession

voluntary, the jury accepted that finding, and on appeal the court could not

find in the record sufficient ground on which to hold the verdict clearly

against the weight of the evidence. Essentially the same sequence of events

occurred in Smith v. Heard."°5 In these and other cases, the appellate opin-

ions reflect that the defendants alleged threats or promises had been made,

but even the appellate opinions do not so much as indicate the precise

nature of the allegations.

Even the opinions that do provide a synopsis of the allegations often

only assert, without analysis or explanation, that the confession is voluntary."' 6

One court, in place of analysis, substitutes strong disapproval of the broad

application of the old Brain reference to promises "however slight"; 7 [t]hat

language has never been applied with the wooden literalness urged uponus by appellant."' 0

B. After MirandaAfter Miranda, as predicted by the Supreme Court, most of the cases

transferred their attention from the confession to the waiver. However,it was still possible for there to be full compliance with Miranda and yet

for a confession to be held involuntary.

[A]n incriminating statement may... be admissible... because notfactually shown to have been freely and voluntarily given, even thoughthe requirements of Miranda have been fully met; for an accused maysurely be physically or psychologically induced to incriminate himselfafter he has been fully warned and advised of all his Constitutionalrights.0'

0

This initial skepticism about the effectiveness of formal waiver hadbeen anticipated by the Supreme Court in Haynes v. Washington:"104 308 F.2d 700 (10th Cir. 1962).

105 315 F.2d 692 (5th Cir. 1963).

106 See United States v. Ferrara, 377 F.2d 16 (2d Cir. 1967), cert. denied, 389 U.S. 908

(1967) (federal agent told experienced criminal that if he cooperated, the agent felt sure

he would be released on reduced bail); Fernandez-Delgado v. United States, 368 F.2d 34 (9th

Cir. 1966) (a confession was held voluntary even though the defendent had been promisedhelp in obtaining bail and told that any assistance he gave the authorities would be brought

to the attention of the prosecuting attorney). In United States ex rel. Johnson v. Yeager,327 F.2d 311, 317 (3d Cir. 1964), the court acknowledges that a bargain made with another

defendant was improper but not sufficiently so to rule his confession involuntary. Theconfession had been given after the police asked the defendant if he had a gun at homeand told him they wanted to check to see if it had been fired, promising not to use it asevidence if it had not been fired.107 Brain v. United States, 168 U.S. 532, 542-43 (1897).108 United States v. Ferrara, 377 F.2d 16, 17 (2d Cir. 1967).109 Coyote v. United States, 380 F.2d 305, 310 (10th Cir. 1967).110 373 U.S. 503 (1963).

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Common sense dictates the conclusion that if the authorities weresuccessful in compelling the totally incriminating confession of guilt,the very issue for determination, they would have little, if any, troublesecuring the self-contained concession of voluntariness. Certainly, wecannot accord any conclusive import to such an admission....11'

It is likewise conceded that written waiver might not alone be sufficient inUnited States v. Hall. 12

It was in this climate that Congress included in the Omnibus CrimeControl and Safe Streets Act of 1968113 sections directly expressing tests ofvoluntariness. When determining involuntariness, a federal judge is directedto consider "all the circumstances surrounding the giving of the confession." 1 "

11 Id. at 513.112 396 F.2d 841 (4th Cir. 1968); Accord, United States v. Barber, 291 F. Supp. 38 (D. Neb.1968) (holding a waiver not knowing and intelligent where it followed comments fromauthorities that they were mainly concerned with who had made the counterfeit money thatthe defendant was accused of passing, and where they discussed the possibility of her beingfreed at a time when she feared a still free cohort would harm her children).113 Act of June 19, 1968, Pub. L. No. 90-351 (tit. 1, Declarations and Purpose).114 18 U.S.C. §3501(b) (1968). Federal judges had earlier been instructed on the conceptof voluntariness in connection with guilty pleas FED. R. CRIM. P. 11 (1966) prohibitsa judge's accepting such a plea "without first addressing the defendant personallyand determining that the plea is made voluntarily with understanding of the nature of thecharge and the consequences of the plea." (This language reflects the same concerns asthose expressed by the Ohio Court of Appeals in State v. Utsler, 21 Ohio App. 2d 167,255 N.E.2d 861 (1970), two years later when spelling out the tests to determine the ef-fectiveness of waiver.) Rule 11 specifically prohibits the court's accepting a guilty plea"unless it is satisfied that there is a factual basis for the plea."

The federal rule is to be contrasted with OhIo R. CiM. P. 11. The federal rule appliesto guilty pleas in both felony and misdemeanor cases, whether or not the defendant isrepresented by counsel. The Ohio rule reserves only for felony cases in which the defendantis not represented by counsel, the requirements regarding the judge personally addressing thedefendant. Ohio's rule is, however, even more detailed as to those requirements. Rule 1 1(C)(2) provides that the judge

shall not accept such plea without first addressing the defendant personally and: (a)determining that he is making the plea voluntarily, with understanding of the nature ofthe charge and of the maximum penalty involved, and, if applicable, that he is noteligible for probation. (b) informing him of and determining that he understands theeffect of his plea of guilty or no contest, and that the court upon acceptance of theplea may proceed with judgement and sentence. (c) informing him and determining thathe understands that by his plea he is waiving his rights to jury trial, to confront wit-nesses against him, to have compulsory process for obtaining witnesses in his favor, andto require the state to prove his guilt beyond a reasonable doubt at a trial at whichhe cannot be compelled to testify against himself.

In all this detail what is missing is the federal requirement that there be a finding offactual basis for the plea. In other words, if Ohio's Rule 12 helps the prosecution morethan federal Rule 12 does, Ohio's Rule 11 is far more helpful to the defendant than thefederal Rule 11 is. The Ohio rule concentrates on the defendant's understanding of conse-quences; federal Rule 11 concentrates far more on whether he apparently committed thecrime. That is, surprisingly for a rule made effective in 1966, the federal rule reflects thereliability theory.

It is acknowledged that the effects of a guilty plea are usually of far more consequencethan those of a statement that amounts to a confession. Thus the analogy here is not com-pletely precise. But it is still true that a judge who is used to following a set of rules inone context is at least likely to have them in mind for definitional purposes in anothercontext in which the same concept, voluntariness, is at issue.

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The statute indicates that the presence or absence of any one factor should

not be conclusive.

However, the history of federal cases since Miranda generally shows

growing reliance on written waiver as indicative, if not completely con-

clusive, of voluntariness." 5 United States v. Arcedianol" is one of the few

opinions to include the nature of the defendant's allegations to support his

contention of involuntariness. Here an FBI agent told a defendant in state

custody "that he would speak to local authorities and would do his best tohave the defendant placed in federal custody,""' where the defendant pre-ferred to be because he believed he would get better medical attention.Regarding these allegations, which the court apparently believed, the court

comments that since the defendant conditioned giving information on the

agent's giving him assurances, the ensuing statement was clearly voluntary.".

United States v. Lewis"' is an even more unusual opinion insofar as

it goes into detail to refute the defendant's allegations. The defendant hereclaimed that the Assistant Chief of Security at his prison promised thathe would be released from maximum security confinement if he confessed.Ruling his allegations false, the court cites evidence that the alleged promisorwas merely an investigator who had been at the institution only two weeks,and lacked authority even to suggest such a bargain, and that he would havehad little notice that the FBI would be interrogating the prisoner on theday of the confession. The court completely disregards the likelihood thatthe defendant would have had little knowledge of these facts.

United States v. Walker' is far more typical in its briefly expressedholding that a confession was voluntary. Here the defendant claimed hisfear of returning to the state penitentiary, and his desire to go to the federalpenitentiary instead, made his confession involuntary. The court on appealsimply did not agree. Walker is the most recent in the long series of federal

115 See United States v. Cox, 487 F.2d 634 (5th Cir. 1973); United States v. Chapman, 448F.2d 1381 (3d Cir. 1971); Brooks v. United States, 416 F.2d 1044 (5th Cir. 1969); Holbrookv. United States, 406 F.2d 44 (10th Cir. 1969); United States v. Hayes, 385 F.2d 375 (4thCir. 1967), cert. denied, 390 U.S. 1006 (1968).116 371 F. Supp. 457 (D.N.J. 1974).

117 Id. at 462.I's The court cites United States v. Frazier, 434 F.2d 994 (5th Cir. 1970), for the proposi-tion that Bram is not to be followed literally. But see Sands v. Rose, 396 F. Supp. 257 (E.D.Tenn. 1975), in which the state trial court had not believed the defendants' allegations thatthey were given to understand that if they confessed, they would be transferred to a differentjail where they would get better medical attention. Although their confessions were foundvoluntary, the district court acknowledged that such allegations, if believed, would be "rea-sonably certain" to result in a finding of involuntariness.119 524 F.2d 991 (5th Cir. 1975) (per curiam).120 524 F.2d 1125 (10th Cir. 1975).

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cases in which the reviewing court finds insufficient evidence in the recordto warrant disturbing the earlier finding of voluntariness.

Walker makes a fitting concluding case because it is typical. Whilethe courts still sometimes quote with approval the liberal language of theearly Supreme Court cases, when the courts apply the tests, they are inclinedto find confessions voluntary unless there is uncontradicted evidence ofdemonstrable facts amounting to involuntariness as a matter of law. In aswearing contest between defendant and prosecutor, defendant usually loseson appeal as well as at trial.

CONCLUSIONSThe comparison between Ohio courts and federal courts does support

the general conclusion that if a defendant's confession has been inducedby threats or promises, such as to make it involuntary according to currentUnited States Supreme Court standards, that defendant does stand a betterchance of having his confession held involuntary by a federal court than bythe courts of Ohio. There are four separate contributing factors.

First, the federal courts are at least somewhat less likely to apply thereliability test. (Ironically, however, this may work to the benefit of adefendant whose trial is in state court. If his trial record clearly shows thereliability test was used, he may later secure a reversal in federal court onhabeas corpus. If his trial is in district court, the record is more likely notto reveal any application of the reliability test, which will make it harderfor him on appeal.)

Second, the federal courts much more consistently allocate properly tothe state the burden of proof of voluntariness of both waivers and con-fessions.

Third, the federal courts do not tend to regard Miranda violations asharmless error, as Ohio sometimes does.

Fourth, the Federal Rules of Criminal Procedure do not impose thestumbling blocks that the Ohio Rules do. (However, state judges accustomedto testing voluntariness of guilty pleas under Ohio Rule 11, may transferat least some of the care that rule imposes when they test confessions.Federal Rule 11 does not go into nearly as much detail and does suggestsome residual effect of the reliability theory. On the other hand, the 1968Omnibus Crime Control and Safe Streets Act instructs federal judges care-fully also in how to test for voluntariness.)

However, in the wake of Miranda, a defendant in either Ohio orfederal court stands far less chance of having his confession held involuntary

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as a matter of law. Attention to procedure has made it almost impossiblefor a record to show inherently coercive circumstances, and the defendantis almost certain to lose a swearing contest with the police as to what went

on behind the closed doors of the interrogation room. Ultimately, thedefendant whose confession was in fact involuntary may now have hisonly substantial chance of reversal if he can prove some procedural violationby the authorities-not an easy thing to do since Miranda has also resultedin sophisticated police training to avoid technical error.

Miranda has often been criticized for interfering with effective lawenforcement and letting the guilty go free; its less publicized long-termeffect may be to focus so completely on procedural matters that traditionalvoluntariness will cease to be an issue at all.12' If that day comes, it willbe defendants, not the police, who will suffer as a result. If a defendantwho has made an involuntary confession loses the procedural means bywhich to have it held involuntary, then Miranda, the landmark due processcase, will have fostered a devastating erosion of the right of due process.

121 See Michigan v. Mosley, 423 U.S. 96, 99-100 (1975), where the Supreme Court reiterates

that a Miranda violation renders a confession inadmissible even though voluntary. In his dis-cussion of this rule in his dissent, Justice Brennan explains that freedom from Miranda viola-tions is "necessary, though not sufficient, for the admission of a confession," Id. at 113that is, that voluntariness remains an issue. Yet, Justice Brennan goes on to refer to the"clear, objective standards [provided by Miranda] that might be applied to avoid the vagariesof the traditional voluntariness test." Id.

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